The term "hate speech" has become a useful tool for speech suppression, mostly from the Left side of the political aisle. The reason it is such a dangerous term for free speech is that there is no useful definition of hate speech, meaning that in practice it often comes to mean, "confrontational speech that I disagree with." I think most of us would agree that saying, "all black men should be lynched" is unambiguously hateful. But what about saying something like "African Americans need to come to terms with the high rate of black on black violence." Or even, "President Obama plays too much golf." I would call both the latter statements opinions that, even if wrong, reasonably fit within the acceptable bounds of public discourse, but both have been called hate speech and racist.

The Left's new tool for speech suppression appears to be the term "fake news." Certainly a news story that says, "American actually has 57 states" would be considered by most to be fake. We understand (or most of us outside places like the New York Times, which still seems to get fooled) that sites like the Onion are fake. But, as I suspected the very first time I heard the term, "fake news" also seems to be defined as "political sites with which I disagree." Via Reason:

But Zimdars' list is awful. It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not "fake news" sites. They are blogs that—much like Reason—have a mix of opinion and news content designed to advance a particular point of view. Red State has linked to pieces from Reason on multiple occasions, and years ago I wrote a guest commentary for Breitbart attempting to make a conservative case to support gay marriage recognition....

Reporting on the alleged impact of fake news on the election is itself full of problems. BuzzFeed investigated how well the top "fake" election news stories performed on Facebook compared to the top "real" election news stories. The fake stories had more "engagement" on Facebook than stories from mainstream media outlets. There's basic problems with this comparison—engagement doesn't mean that people read the stories or even believed them (I know anecdotally that when a fake news story shows up in my feed, the "engagement" is often people pointing out that the story is fake).

There's also a problem when you look at the top stories from mainstream media outlets—they tend toward ideologically supported opinion pieces as well. Tim Carney over at The Washington Examinernoted that two of the top three stories are essentially opinion pieces:

Here's the top "Real News" stories: "Trump's history of corruption is mind-boggling. So why is Clinton supposedly the corrupt one?" As the headline suggests, this is a liberal opinion piece, complaining that the media doesn't report enough on Trump's scandals.

No. 2 is "Stop Pretending You Don't Know Why People Hate Hillary Clinton." This is a rambling screed claiming that people only dislike Clinton because she is a woman.

So in an environment where "fake news" is policed by third parties that rely on expert analysis, we could see ideologically driven posts from outlets censored entirely because they're lesser known or smaller, while larger news sites get a pass on spreading heavily ideological opinion pieces. So a decision by Facebook to censor "fake news" would heavily weigh in favor of the more mainstream and "powerful" traditional media outlets.

The lack of having a voice in the media is what caused smaller online ideology-based sites to crop up in the first place. Feldman noted that he's already removed some sites that he believes have been included "unfairly" in Zimdars' list. His extension also doesn't block access to any sites in any event. It just produces a pop-up warning.

Tellingly, in a quick scan of the sites, I don't see any major sites of the Left, while I see many from the Right (though Zero Hedge is on the list and writes from both the Left and the Right). Daily Kos anyone? There are conspiracy sites on the list but none that I see peddle conspiracies (e.g. 9/11 trutherism) of the Left.

This is yet another effort to impose ideological censorship but make it feel like it is following some sort of neutral criteria.

Yglesias has a very good article on why passenger rail is not a bigger deal in the US. In it, he says this (emphasis added):

Instead the issue is that the dismal failure of US passenger rail is in large part the flip side of the success of US freight rail. America's railroads ship a dramatically larger share of total goods than their European peers. And this is no coincidence. Outside of the Northeast Corridor, the railroad infrastructure is generally owned by freight companies — Amtrak is just piggybacking on the spare capacity.

It is a short article, so it does not go into more depth than this, but I have actually gone further than this and argued that the US freight-dominated rail system is actually far greener and more sensible than the European passenger system. As I wrote years ago at Forbes:

The US rail system, unlike nearly every other system in the world, was built (mostly) by private individuals with private capital. It is operated privately, and runs without taxpayer subsidies. And, it is by far the greatest rail system in the world. It has by far the cheapest rates in the world (1/2 of China’s, 1/8 of Germany’s). But here is the real key: it is almost all freight.

As a percentage, far more freight moves in the US by rail (vs. truck) than almost any other country in the world. Europe and Japan are not even close. Specifically, about 40% of US freight moves by rail, vs. just 10% or so in Europe and less than 5% in Japan. As a result, far more of European and Japanese freight jams up the highways in trucks than in the United States. For example, the percentage of freight that hits the roads in Japan is nearly double that of the US.

You see, passenger rail is sexy and pretty and visible. You can build grand stations and entertain visiting dignitaries on your high-speed trains. This is why statist governments have invested so much in passenger rail — not to be more efficient, but to awe their citizens and foreign observers.

But there is little efficiency improvement in moving passengers by rail vs. other modes. Most of the energy consumed goes into hauling not the passengers themselves, but the weight of increasingly plush rail cars. Trains have to be really, really full all the time to make for a net energy savings for high-speed rail vs. cars or even planes, and they seldom are full. I had a lovely trip on the high speed rail last summer between London and Paris and back through the Chunnel — especially nice because my son and I had the rail car entirely to ourselves both ways.

The real rail efficiency comes from moving freight. As compared to passenger rail, more of the total energy budget is used moving the actual freight rather than the cars themselves. Freight is far more efficient to move by rail than by road, but only the US moves a substantial amount of its freight by rail. One reason for this is that freight and high-speed passenger traffic have a variety of problems sharing the same rails, so systems that are optimized for one tend to struggle serving the other.

Freight is boring and un-sexy. Its not a government function in the US. So intellectuals tend to ignore it, even though it is the far more important, from and energy and environmental standpoint, portion of transport to put on the rails. ....

I would argue that the US has the world’s largest commitment to rail where it really matters. But that is what private actors do, make investments that actually make sense rather than just gain one prestige (anyone know the most recent company Warren Buffet has bought?) The greens should be demanding that the world emulate us, rather than the other way around. But the lure of shiny bullet trains and grand passenger concourses will always cause some intellectuals to swoon.

Which would you rather pounding down the highway, more people on vacation or more big trucks moving freight? Without having made an explicit top-down choice at all, the US has taken the better approach.

I am increasingly convinced that the appeal of streetcars and light rail has everything to do with class. From any rational perspective, these systems make no sense -- they are 10-100x more expensive than buses and lack the flexibility that buses have to adjust to shifting demand patterns over time. A single extra lane of highway adds more capacity than any light rail line.

Streetcar's single, solitary advantage is that middle and upper class whites who would not be caught dead on a bus seem to be willing to ride streetcars. I don't know if this is because of some feature of the streetcars (they are shiny and painted pretty) or if it is some sort of self-segregation (the upper classes want to ride on something that is not filled with "riffraff").

Anyway, Reason has a really good video on streetcars, which covers a lot of topics from cronyism to the class issues I mention. And the film of the incredibly poor design of the DC streetcar has to be seen to be believed. (via Maggies Farm and their great daily links page)

Consider Cleveland. The ClevelandPlain Dealer reported that the police department looked into 4,427 uses of force by cops over four years and gave its blessing to each one. In Houston, every shooting over six years was found by the internal affairs department to be absolutely necessary. ...

The feds also assume that law enforcement officers are less fallible than the pope. From January 2010 to October 2013, the Los Angeles Times reported, Border Patrol agents shot 67 people, killing 19. Three of the agents are still being investigated. Of the remaining 64, 62 were absolved. The other two got a stern lecture.

It's all part of a national pattern. Bowling Green State University criminologist Philip Stinson has done extensive research on killings by cops. His conclusion? "It's very rare that an officer gets charged with a homicide offense resulting from their on-duty conduct even though people are killed on a fairly regular basis," he told The Wall Street Journal.

The University of Mary Washington permanently cancelled its student rugby team after evidence surfaced that team members had engaged in sexist chanting at an off-campus house party. All members of the team were also required to attend sexual assault training.

But while UMW's rugby team has 46 players, only 8 of them were even in attendance at the party—meaning that not only did a public university punish a few students for engaging in inappropriate (though constitutionally-protected) speech, it also punished other students who had nothing to do with said (again, constitutionally-protected!) speech.

The microaggression unfolded last November at a house party near the Fredericksburg, Virginia, campus, according to Jezebel's Erin Gloria Ryan. Some students, likely drunk, sang a demeaning song about raping corpses and "wiggling it" inside whores—inappropriate stuff, to be sure, though not really targeted at a specific entity in a threatening way. The chant apparently has its origins in rowdy "pub" songs. It's a curious tradition, though not one intended to inspire actual malice, it seems.

I played rugby for several years (for Harvard Business School, of all places) and never encountered a rugby club that did not have a repertoire of raunchy pub songs. It was a tradition, which I presume was copied from the mother country, that teams would share in singing of these songs over many drinks after a match. While often crude and offensive, they were known to all to be so. I can't remember anyone being somehow confused between what was in those songs and what was a correct way to comport oneself in society. We sang crude songs for a few hours, and then went back to crafting strategies for water meter manufacturers.

Leaving aside the first amendment issues and whether there is really any harmful behavior here, think for a moment about the nature of crime and punishment here. College rugby teams have comported themselves as such for literally scores of years without any blowback except for occasional disdain from the blue bloods (the inciting of which is probably half the reason for the exercise in the first place). No laws or written rules were broken and the team was comporting themselves in a way that had been at least implicitly tolerated for generations. Then all of a sudden the team is disbanded. No advance warning, no discussion in advance that such behavior would now be treated in the future as illegal.

Billionaire John Catsimatidis is working to slip a biofuel mandate that would add $150 million to New Yorkers’ heat expenses into the state budget just as a company he owns completes construction of the largest biofuel plant in the region.

The New York Post reports that Catsimatidis’ lobbyists are putting the pressure on State senators to slip a provision that would require all heating oil sold in New York to contain “2 percent or more of soybean oil and/or spent vegetable oils.”

He is a close friend of the Clintons. Expect a total crony feeding fest should Hillary get elected President,

Actress Veena Malik was sentenced this week to 26 years in prison by a Pakistani court for reenacting her wedding with her husband on a morning TV show. Her husband, Asad Khattak, as well as Mir Shakil-ur-Rahman, the owner of Geo TV, which aired the program, and Shaista Whidi, who hosted it, all received 26 year sentences as well.

The program caused controversy when it first aired several months ago, leading the TV station to run apologies in Pakistani newspapers. The court primarily objected to the use of religious music in the mock wedding. "The malicious acts of the proclaimed offenders ignited the sentiments of all the Muslims of the country and hurt the feelings, which cannot be taken lightly and there is need to strictly curb such tendency," the court ruling said.

I often criticize others for attributing 100% of any bad trend to their personal pet peeve. Â To some extent I am guilty of that in my last post, where I blamed declining business formation on increasingly complex regulation and licensing. Â I think there are good reasons for doing so -- I have spent the last 6 months passing up on business growth opportunities because I was too consumed with catching up on regulatory compliance minutia, particularly in California. Â And I have watched as many of my smaller competitors who have fewer resources to dedicate to such compliance issues have left the business, telling me they could no longer keep up with all the requirements.

But there is seldom just one single cause for any trend in a complex, chaotic system (e.g. climate, but economics as well). Â One other reason business formation may have dropped is the crash of the housing market and specifically in the equity many have in their homes.

Home equity has historically been an important source of capital for small business formation. Â My first large investment in my company was funded with a loan that was secured by the equity in my home. Â What outsiders may not realize about small business banking nowadays is that it is nothing like how banking is taught in high school civics. Â In that model, the small business person goes to her local banker and presents a business plan, which the banker may fund if they think it is a good risk.

In the real world, trying to get such an unsecured loan from a bank as a small business will at best result in laughter. Â My company is no longer what many would call "small" -- we will do millions in revenue this year. Â But there is no way in the world that my banker of over 10 years will lend to my business unsecured -- they will demand some asset they can put a lien on. Â So we can get financing of equipment purchases (as a capital lease on the equipment) and on factored receivables and inventory. Â But without any of that stuff, a new business that just needs cash for startup cash flow is out of luck -- unless the owner has a personal asset, typically a house, on which the banker can place a lien.

So, without home equity, one of the two top sources of capital for small business formation disappears (the other top source is loans from friends and family, which one might also expect to dry up in a tough economy).

Postscript: Â Banks will make cash flow loans if guaranteed by the SBA. Â This is another whole can of worms, which I will not discuss today. Â SBA loans are expensive and difficult to get, and the SBA has a tendency to turn the money spigot on and off at random times. Â I have often wondered if the SBA helped to kill cash flow lending by banks. Â First, why make risky small unsecured loans when you can get a government guarantee? Â And second, with more formulaic lending criteria, SBA lending eliminated the need for loan officers who were good at evaluating business risks. Â I can say from personal experience that the folks who can intelligently discuss a business plan and its risks are all gone from banks now (at least in the small business market).

The only reason people like Michael Moore or Tom Harkin can get away with singing praises of Cuban socialism is because most Americans can't go visit and see for themselves. By keeping Cuba off-limits, we are doing the communists' work for them by allowing them to provide cherry-picked videos and stories through useful idiots that have zero bearing on the true life of the average person in Cuba.

Here is the problem: There exists a highly dynamic, multi- multi- variable system. One input is changed. How much, and in what ways, did that change affect the system?

Here are two examples:

The government makes a trillion dollars in deficit spending to try to boost the economy. Did it do so? By how much? (This Reason article got me thinking about it)

Man's actions increase the amount of CO2 in the atmosphere. We are fairly confident that this has some warming effect, but how how much? There are big policy differences between the response to a lot and a little.

The difficulty, of course, is that there is no way to do a controlled study, and while one's studied variable is changing, so are thousands, even millions of others. These two examples have a number of things in common:

We know feedbacks play a large role in the answer, but the system is so hard to pin down that we are not even sure of the sign, much less the magnitude, of the feedback. Do positive feedbacks such as ice melting and cloud formation multiply CO2 warming many times, or is warming offset by negative feedback from things like cloud formation? Similarly in the economy, does deficit spending get multiplied many times as the money gets respent over and over, or is it offset by declines in other categories of spending like business investment?

In both examples, we have recent cases where the system has not behaved as expected (at least by some). The economy remained at best flat after the recent stimulus. We have not seen global temperatures increase for 15-20 years despite a lot of CO2 prodcution. Are these evidence that the hypothesized relationship between cause and effect does not exist (or is small), or simply evidence that other effects independently drove the system in the opposite direction such that, for example, the economy would have been even worse without the stimulus or the world would have cooled without CO2 additions.

In both examples, we use computer models not only to predict the future, but to explain the past. When the government said that the stimulus had worked, they did so based on a computer model whose core assumptions were that stimulus works. In both fields, we get this sort of circular proof, with the output of computer models that assume a causal relationship being used to prove the causal relationship

So, for those of you who may think that we are at the end of math (or science), here is a class of problem that is clearly, just from these two examples, enormously important. And we cannot solve it -- we can't even come close, despite the hubris of Paul Krugman or Michael Mann who may argue differently. We are explaining fire with Phlogiston.

I have no idea where the solution lies. Perhaps all we can hope for is a Goedel to tell us the problem is impossible to solve so stop trying. Perhaps the seeds of a solution exist but they are buried in another discipline (God knows the climate science field often lacks even the most basic connection to math and statistics knowledge).

Maybe I am missing something, but who is even working on this? By "working on it" I do not mean trying to build incrementally "better" economics or climate models. Plenty of folks doing that. But who is working on new approaches to tease out relationships in complex multi-variable systems?

Obama's minimum wage push could be an honest attempt to reduce poverty, but since only a trivial percentage of the American work force earns the minimum wage, and most of those are in starter jobs rather than trying to support a family, it does not make a lot of sense.

Organized labor's instantaneous support for President Obama's recent proposal to hike the minimum wage doesn't make much sense at first glance. The average private-sector union member—at least one who still has a job—earns $22 an hour according to the Bureau of Labor Statistics. That's a far cry from the current $7.25 per hour federal minimum wage, or the $9 per hour the president has proposed. Altruistic solidarity with lower-paid workers isn't the reason for organized labor's cheerleading, either.

The real reason is that some unions and their members directly benefit from minimum wage increases—even when nary a union member actually makes the minimum wage.

The Center for Union Facts analyzed collective-bargaining agreements obtained from the Department of Labor's Office of Labor-Management Standards. The data indicate that a number of unions in the service, retail and hospitality industries peg their base-line wages to the minimum wage.

The Labor Department's collective-bargaining agreements file has a limited number of contracts available, so we were unable to determine how widespread the practice is. But the United Food and Commercial Workers International Union says that pegging its wages to the federal minimum is commonplace. On its website, the UFCW notes that "oftentimes, union contracts are triggered to implement wage hikes in the case of minimum wage increases." Such increases, the UFCW says, are "one of the many advantages of being a union member."

The labor contracts that we examined used a variety of methods to trigger the increases. The two most popular formulas were setting baseline union wages as a percentage above the state or federal minimum wage or mandating a ﬂat wage premium above the minimum wage.

Wow, reading this again, I left out so much! An employee once sued us at this location for harassment and intimidation by her manager -- when the manager was her sister! It cost me over $20,000 in legal expenses to get the case dismissed. I had an older couple file a state complaint for age discrimination when they were terminated -- despite the fact that our entire business model is to hire retired people and the vast majority of our employees are 70 and older. And how could I have forgotten the process of getting a liquor license? I suppose I left it out because while tedious (my wife and I had to fly to California to get fingerprinted, for example), it is not really worse than in other places -- liquor license processes are universally bad, a feature and not a bug for the established businesses one is trying to compete with. We gave the license up pretty quickly, when we saw how crazy and irresponsible much of the customer base was. Trying to make the place safer and more family friendly, we banned alcohol from the lake area, and faced a series of lawsuit threats over that.

Raising concerns about consumer privacy, California's health exchange has given insurance agents the names and contact information for tens of thousands of people who went online to check out coverage but didn't ask to be contacted.

The Covered California exchange said it started handing out this consumer information this week as part of a pilot program to help people enroll ahead of a Dec. 23 deadline to have health insurance in place by Jan. 1.

State officials said they are only trying to help potential customers find insurance and sign up in time. But some insurance brokers and consumers who were contacted said they were astonished by the state's move.

"I'm shocked and dumbfounded," said Sam Smith, an Encino insurance broker and president of the California Assn. of Health Underwriters, an industry group.

Smith said he was under the impression from the exchange that these consumers had requested assistance. He received the names of two consumers this week but has not yet contacted them.

"These people would have a legitimate complaint," Smith said.

The names provided include people who started an insurance application on the Covered California website since enrollment launched Oct. 1, but for whatever reason never picked a health plan or completed the sign-up process.

The state said it provided information on tens of thousands of people who logged into the state's website, but it didn't know the exact number.

The exchange said agents were given names, addresses, phone numbers and email addresses if available.

In the opening days of Obamacare’s October 1 launch, federal officials touted high web-traffic numbers, but repeatedly refused to provide enrollment data for the federally facilitated exchanges.

On October 3, White House spokesperson Jay Carney, pressed for enrollment numbers, said, “No, we don’t have that data.” On October 7, in an appearance on the Daily Show, Health and Human Services Secretary Kathleen Sebelius repeated the claim when questioned about enrollment: “I can’t tell you,” she said, “because I don’t know.”

But that simply wasn’t true—at least not during the first few days.

Leaked meeting notes from high-level war room briefings inside the federal health bureaucracy on October 2 and October 3 report that federal officials were aware of the exact number of federal enrollees on the first and second days in which the exchanges were running.

According to the notes, which were released by the House Committee on Oversight & Government Reform and taken from daily briefings in the Center for Consumer Information and Insurance Oversight, the federal office directly in charge of the exchanges, there were just six successful enrollments across the 36 federal exchanges on launch day.

A friend by the way sent me this stat: Of the 5 million first day exchange visitors, more will be hit by lightening this year than successfully enrolled that day

Reason rightly highlights this story about a kid in Georgia facing 10 years in jail because his school found his fishing tackle box in his car and in it was, gasp, his fishing knife.

But what the local news story fails to make a point about is the absurdly low bar school officials have to clear to search student's cars.

Williams, a senior at Allatoona High School, became the subject of a warrantless search after a fellow student told a campus police officer that he or she saw smoke rising from Williams’ car in the student parking lot and it smelled like marijuana. An assistant principal searched the car and did not find any marijuana but did find a pocket knife in the center console, enough to get Williams suspended for 10 days and possibly expelled, while facing felony criminal charges.

Smoke was rising from the car? Really? Like Spiccoli's van in Fast Times for Ridgemont High? I am sure glad this kind of administrative lawlessness was not allowed when I was in school. I wouldn't be surprised if the original student report to the school wasn't a pure fabrication out of spite against this student.

A Paris appeals court this week ordered the French cosmetics chain Sephora to close its flagship boutique on the iconic Champs Élysées boulevard at 9pm, angering salespeople who say they have freely accepted to work until midnight for years and now risk losing their jobs.

Following a trend among other businesses on Paris's most celebrated street, Sephora began extending its opening hours in 1996. Its designer perfumes, makeup and other cosmetics were, until this week, sold until midnight between Monday and Thursday, and as late as 1am on Friday and Saturday.

Citing labour laws that restrict night-time work, France’s largest unions collectively sued the shop. An administrative court sided with Sephora on December 6, 2012, allowing the cosmetics giant to keep its exceptionally late hours on the Champs-Élysées.

However, the appeals court overturned that decision on Sunday, agreeing with unions that the store’s “normal activity” does not “make night-time work a necessarity,” as the law states.

I wasn't really going to post on this but since it is making the news, Equal Marriage Arizona (of which I am co-chair) is putting on hold our efforts to amend the Arizona Constitution in 2014 and will defer to 2016.

At some point when this quiets down, I will write an extended article about the experience, which was certainly a learning exercise for me (and by the way did nothing to dissuade me from my general default stance of avoiding politics like the plague).

We honestly thought that an effort initiated and led by Republicans and libertarians was the right choice for a heavily red state like Arizona, and I am still convinced of that. In fact, I think we knocked some of the Conservative opposition on their heels, and several Conservative commentators publicly stated that ours was a dangerously (for them) effective approach. In addition, a number of prominent Republicans took me aside and thanked me -- they felt that getting this passed would help save the party from its worst impulses.

From the beginning, I had some nervousness that our language was not perfect (though the lawyers were happy with it), but it was polling well and even more than a year in advance we were polling over 50% of probable voters in 2014.

The buzz saw we ran into was not from the Conservative opposition but from those we thought of as our allies. Several prominent LGBT and gay marriage groups turned against us early, and pressured nearly every other group on the Left to oppose us, even getting a number of groups who had endorsed us early to withdraw their endorsements.

The reasons for this were myriad, and I may write that story at some future date. Some of the wounds were self-inflicted on our part, and some were frankly due to my failings as a leader in this political arena. But I am convinced that these groups were never, ever going to support us. Some groups honestly worried that 2014 was too early in Arizona. Others had... other concerns. Scott Shackford of Reason makes some pretty good guesses, but there were issues beyond these.

The best evidence we had before today was a randomized evaluation conducted by Mathematica Policy Research between 2001 and 2003, which found that TFA teachers bested other teachers at teaching math — with gains for students equal to about a month of additional instruction — and were not significantly different from them on teaching reading.

A follow-up using the same data showed that that result held for students across the math score distribution, not just the average student. “These results suggest that allowing highly qualified teachers, who in the absence of TFA would not have taught in these disadvantaged neighborhoods, should have a positive influence not just on students at the top of the achievement distribution but across the entire math test score distribution,” the authors concluded.

We sponsor a TFA teacher each year, and have fun doing a few little things for their classroom through the year (we collect school supplies at the beginning of the year, bring presents during the holidays). Short of the school choice we really need, this is the best way we have found to help K-12 education.

However, the decision not to rule based on lack of standing on the Prop 8 suit creates a real mess above and beyond any implications for same-sex marriage.

Proposition 8, a California initiative to ban same-sex marriage that likely would not pass today, was introduced and passed five years ago because the authors of the initiative knew it was a step legislators would never take but that they thought (correctly at the time) that the voters would support. In fact, in a nutshell, this is exactly what the initiative process was meant to achieve. If citizens think the legislative process is broken on a particular issue (e.g. taxes, where legislators have entirely different incentives vis a vis raising taxes than do taxpayers), they can do an end-run. In a sense, this is exactly what we are doing in Arizona with our Equal Marriage initiative, though of course with the opposite desired end result from Prop 8. But just as in that case, we do not have high hopes of the current legislator passing such a Constitutional Amendment, so we are doing it through citizens initiative.

The problem in the Prop 8 case was that when the law was challenged in court, neither the governor nor the legislature was willing to defend it in court (remember, that it was passed over their opposition). Given the very nature of ballot propositions and the reasons for them discussed above, this is likely a common occurrence. But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court).

This is a really bad precedent. It means that any initiative passed by citizens that is opposed by the current state government is enormously vulnerable to attack in courts. If the government officials are the only ones who have standing, and they refuse to defend the law, then it will lose in court almost by summary judgement.

There has got to be some process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court. Certainly there could be some judicial process for this, almost like the process for certifying a class and its official representative in a class action suit. Without this, citizens initiatives are going to lose a lot of their power.

So should we be worried? Could the reverse – voters approve gay marriage recognition only to have the state refuse to back it – happen? What if the voters approved term limits for state legislators and they just ignored it?

The majority decision was not unsympathetic to the argument (incidentally, it’s interesting to see how polite these arguments are when you end up with such an unusual combination of justices on each side) but firm in that: 1) Getting a ballot initiative passed does not make you an agent of the state with standing; and 2) If you aren’t an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not. Arguably, if the situation were reversed (the state refusing to defend an initiative recognizing gay marriage), it’s easy to see how they could allow standing and the outcry that would cause. A person denied a marriage license from a same-sex ballot initiative may be able to prove harms from discriminatory policies and earn standing.

I had not thought of it that way, but it is interesting that the Court could not find any demonstrated harm to straight petitioners from the legality of same-sex marriage. I suppose that is a good sign.

One question that keeps coming up, both from libertarians as well as others, is why should government define marriage at all? Can't anyone get married in any kind of private ceremony?

My response is that yes, in some sort of libertarian small-government world, the state would be irrelevant -- what I used to call separation of marriage and state.

But it turns out that the state is already deeply involved in marriage. The explicit state licensing of marriage already exists, and our laws in Arizona for this licensing are unequal -- some couples get access to this state license, and some cannot.

What makes this important is that marriage is embedded in hundreds, even thousands, of laws. I searched the Arizona Revised Statutes for mentions of the words "spouse" or "spouses". These words are used 1133 times in 373 different statutes! The Our America team told me they counted over a thousand references in Federal code. In other words, our law codes give -- in thousands of instances -- specific rights, responsibilities, and privileges to married couples who have access to a state-granted marriage license. Those left out of the current unequal definition of marriage face any number of challenges imposed on them by these specifics of spousal rights and privileges embedded in our law code. I call this the non-marriage penalty.

There is no way to rip all these references to marriage out of the law and tax code. The fairest solution -- the one that most respects individual freedoms -- is to accept that such government licensing of marriage exists and then make it as open and as equal and as fair and as accessible as we possibly can. That is what we are trying to achieve with Equal Marriage Arizona.